InDEPEnDEnCE, IMPARTIALITy, PRofESSIonALISM AnD EffICIEnCy of ThE JUDICIAL SySTEM

Transcription

1 AnALyTICAL REPoRT InDEPEnDEnCE, IMPARTIALITy, PRofESSIonALISM AnD EffICIEnCy of ThE JUDICIAL SySTEM AnALySIS AnD ASSESSMEnT of ThE ALIgnMEnT of MACEDonIA S LEgAL framework with ThE STAnDARDS EnvISAgED By ThE EURoPEAn UnIon This report is a résumé of a broader analysis with a complete and detailed analytical examination of the alignment with standards envisaged by the EU in this area, which was prepared by the Association for Development Initiatives Zenith, the Ministry of Justice of the Republic of Macedonia and Denis Preshova, M.E.S., LL.M. DECEMBER 2014

2 AnALyTICAL REPoRT InDEPEnDEnCE, IMPARTIALITy, PRofESSIonALISM AnD EffICIEnCy of ThE JUDICIAL SySTEM AnALySIS AnD ASSESSMEnT of ThE ALIgnMEnT of MACEDonIA S LEgAL framework with ThE STAnDARDS EnvISAgED By ThE EURoPEAn UnIon DECEMBER

3 ConTEnTS I. SUMMARy... 4 II. TREnDS In ThE EU ACCESSIon negotiation PRoCESS... 6 III. overview By SPECIfIC ASPECTS of ThE JUDICIARy InDEPEnDEnCE, IMPARTIALITy, PRofESSIonALISM AnD EffICIEnCy Independence Impartiality Professionalism Efficiency Iv. overview of ThE DEgREE of ALIgnMEnT of ThE national LEgAL framework Magna Carta of Judges (Fundamental principles) Basic Principles on the Independence of the judiciary Measures to prevent and reduce workload in the courts Bangalore principles of judicial conduct Independence, efficiency and responsibilities of the judges Role of the public prosecutors in the criminal justice system Ethics and conduct for public prosecutors Right to a fair trial and right to an effective remedy v. REvIEw of PoLICIES, STRATEgIES AnD PLAnS vi. InvoLvEMEnT of ThE PUBLIC In JUDICIAL REfoRMS AnD ThE PARTICIPATIon of CIvIL SoCIETy MEChAnISMS In MonTEnEgRo, SERBIA AnD MACEDonIA vii. ConCLUSIon AnD RECoMMEnDATIonS Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 3

4 I. SUMMARy According to Article 2 of the Treaty on European Union (TEU), the European Union is founded, above all, on rule of law, freedom, democracy and respect for human rights. These values are common to the Member States, but EU aspirant countries are also expected to advocate and respect them. The judiciary is an important factor for the fulfilment and respect for these values. In the EU context, the national judiciary has a dual role. On the one hand, independent and impartial judiciary is one of the fundamental pillars of the rule of law, and thus of any functioning democracy, which is a prerequisite for accession in the EU. On the other hand, the national courts are one of the key allies of the European Union in the development and application of EU law. Membership in the European Union gives the judiciary, as a particularly important segment of the political and constitutional system, a so-called European mandate. The term refers to the fact that national courts and judges have an obligation to directly apply, to protect and to develop the EU law, for which they need adequate capacity and status. Hence, the European Union puts a strong emphasis on the judiciary in the pre-accession and the accession process. The Union looks at the issues related to the judiciary as part of the political components of the Copenhagen criteria and as part of Chapter 23 Judiciary and fundamental rights in the accession negotiations. In addition to Article 47 of the Charter of Fundamental Rights of the EU, the primary and secondary EU law contains no provisions related to the status of the national judiciary. This is due to the principle of respect for national autonomy by the Union in the organization and regulation of the domestic institutional structure. So, when it comes to national courts, the Member States have models for organizing the judiciary. However, chronic problems in this area in some of the more recent Member States initiated a process of defining European standards for independent and impartial judiciary, through the promotion of documents and standards of the Council of Europe and the United Nations concerning the judicial branch of power. Precisely these documents form the basis for chapter 23 in the field of judiciary, which renders a model of an independent, impartial, professional and efficient judiciary. Macedonia was one of the first countries in the region which began reforms in the judiciary in the context of the European integration process, with the adoption of a Judicial System Reform Strategy for the period and the constitutional amendments in this area. Ten years after the commencement of these important reforms, the legal framework in the country incorporates almost all important international standards for independent and impartial judiciary. Major reforms were carried out, in terms of the constitutional safeguards and the organizational structure of the judiciary, as well as in relation to other aspects of the judiciary, such as guaranteeing its financial independence, increasing its efficiency, the introduction of objective criteria for the selection and dismissal of judges, strengthening the status of the Public Prosecutor and the like. This publication related to the judiciary, analyses and assesses the alignment of the national legal framework with the standards set forth by the EU on independent and impartial judiciary. The report does not go into a detailed analysis of the implementation and observance of these standards by the courts and other institutions in the country. The results of the analysis are presented in seven sections. This brief summary is followed by an overview of trends in the 4

5 negotiation process (Chapter II), which also concerns justice reform. The third part of this publication addresses the specific aspects of the judiciary, as presented and discussed by the Union in the progress reports of the European Commission and reports on legal alignment with the EU law 1 for countries that have already started accession negotiations with Union (Chapter III). These aspects relate to the independence, impartiality, professionalism and efficiency of the judiciary. This summary is followed by a detailed review of the alignment of the national legal framework with European standards, i.e., specific documents of the Council of Europe and the United Nations (Chapter IV). The publication then presents policies, strategies and plans of the Ministry of Justice, i.e., the Government, to improve the domestic legal framework and achieve full alignment with the standards (chapter V). The next section (Chapter VI) explains the need for public involvement in the judicial reforms and efforts to ensure the participation of civil society. Finally, the last section (Chapter VII), based on the analysis of alignment, presents concluding observations and recommendations that should help further steps in the reform of the judiciary. 1 So-called screening reports on specific chapters. Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 5

6 I I. TREnDS In ThE EU ACCESSIon negotiation PRoCESS According to the 2014 EU Enlargement strategy, strengthening the rule of law is central to the accession process. This new approach to accession negotiation was introduced in 2012 as part of the negotiation framework for Montenegro. Thus, the chapters relating to the rule of law area are opened early in the negotiation process, remain open for the entire duration of the negotiations and finally, are closed in the final negotiation stages. In the case of Montenegro, the opening benchmark for the chapter Judiciary and Fundamental Rights was to prepare an action plan according to the findings identified in the screening report. Recommendations deriving from the report were laid out as long and short term goals of the Action Plan for the period The structure of the Action Plan follows the format of the chapter according to thematic areas. Intermediate benchmarks were set by the EU on the basis of the prepared Action Plan, which actually represents a Roadmap for reforms in the area of judiciary and fundamental rights in the accession negotiation process. From a total of 45 interim benchmarks for chapter 23, three quarters relate to the legislative framework and administrative capacities, while a quarter on achieving initial track record. Out of these, 18 benchmarks refer to the judiciary, 14 to anti-corruption measures and 11 to fundamental rights. One benchmark relates to adequate involvement of the civil society in the negotiations for this chapter, as well as on monitoring the implementation of the Action Plan. As for the institutional structure for monitoring the negotiation process with the EU, in March 2014, the Government of Montenegro established the Rule of law Council, headed by the Minister of Justice. The Council will monitor and coordinate the activities related to the implementation of the action plans relating to the rule of law chapter. In this line is also the establishment of the Committee on European Integration, chaired by the chief negotiator, with a mandate to monitor the implementation of the Accession programme , and the fulfillment of obligations arising from the Stabilisation and Association Agreement. The established new approach to accession negotiation initiated with Montenegro indicated the way all other Western Balkan countries would conduct negotiations with the EU in the future. Serbia has started negotiations according to the new approach and is currently in the process of preparing an Action Plan for chapter 23 for addressing the obligations deriving from the screening report. Accordingly, Macedonia, as a country waiting to start accession negotiations, could expect the application of the new methodology for opening negotiations with the two key chapters in the area of rule of law 2 continuous monitoring throughout the duration of the negotiations, as well as showcasing track records in implementing various reforms. 2 Chapters 23 and 24. 6

7 I I I. overview By SPECIfIC ASPECTS of ThE JUDICIARy InDEPEnDEnCE, IMPARTIALITy, PRofESSIonALISM AnD EffICIEnCy 1. Independence Standards on independence envisaged by the EU Magna Carta of Judges (paragraphs 1 13) Basic Principles on the Independence of the Judiciary Recommendation CM/Rec (2010) 12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities (paragraphs 1 29, 44 55) Recommendation Rec (2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system (paragraphs 1 23) Body Consultative Council of European Judges, Council of Europe United Nations Council of Europe Council of Europe The independence of the judiciary in Macedonia is regulated at the highest level, i.e., with the Constitution of the Republic of Macedonia. According to article 8, the division of powers is envisaged as one of the fundamental constitutional values, while article 98 of the Constitution and article 1 of the Courts Act regulates that the courts are exercising the judicial power and that they are independent and autonomous in doing so. In this manner, the judiciary is clearly separated from the other two branches of power, the legislative and the executive. Judges decide on the basis of the Constitution, laws and international agreements ratified in accordance with the Constitution. Emergency courts are prohibited. The types of courts, their judicial competence, their establishment, abrogation, organization and composition of the courts, and the procedure they follow are regulated by a law adopted by a two-thirds majority of the total number of Members of Parliament. 3 Court hearings and the passing of verdicts are public. The public can be excluded in cases determined by law. 45 Judicial power in the Republic of Macedonia Supreme Court Administrative Court The Supreme Court of the Republic of Macedonia is the highest court in the Republic, providing uniformity in the implementation of the laws by the courts. The Court exercises judicial power on the entire territory of the Republic of Macedonia, and its headquarters is in Skopje. The Administrative Court, for the purpose of providing judicial protection of the rights and legal interests of natural and juridical persons, and in order to ensure legality, in administrative disputes decides on the legality of the acts of the state administration authorities, the Government, and other state authorities, municipalities and the City of Skopje, organizations determined by law and juridical persons and other entities exercising public mandates (agents of public mandates), when deciding on rights and responsibilities in individual administrative matters, as well as acts issued in misdemeanor procedure Amendment XXV of Macedonia s Constitution. Article 102 of Macedonia s Constitution. Article 101 of Macedonia s Constitution. Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 7

8 Judicial power in the Republic of Macedonia Higher Administrative Court Appellate Courts in Skopje, Bitola, Shtip and Gostivar 27 Basic Courts The Higher Administrative Court decides upon appeals against decisions of the Administrative Court and decides in case of conflict of competences between the bodies of the Republic, municipalities, as well as in disputes concerning conflict of competences between holders of public powers. Appellate Courts are second-instance courts, i.e. are deciding on appeals against the decisions of the Basic Courts. The Basic Courts operate as first instance courts and decide in first instance on criminal matters and misdemeanours, civil disputes, and execution of criminal santions. Basic Courts are established as courts with basic jurisdiction and courts with expanded jurisdiction. A specialized court department with jurisdiction in deciding in cases of organized crime and corruption for the whole territory of the Republic of Macedonia is established in the Basic Court Skopje I Skopje. There are no restrictions associated to judge s term in office. 6 Their term ends if the conditions for retirement are fulfilled. In addition, article 99, amendment XXVI of the Constitution outlines the cases when judge s term in office ceases and when a judge is discharged from office. This is further regulated in the Courts Act and the Act on the Judicial Council of the Republic of Macedonia. The judge, according to article 39 of the Courts Act, cannot be transferred against their will. As an exception, the judge may be transferred, on temporary basis, and in a predefined situation. In this case, the judge may file an appeal against the decision for transfer. Judges enjoy immunity. A judge cannot be held criminally liable for an opinion and deciding in the process of rendering a court decision. A judge shall not be detained without the consent of the Judicial Council, except when caught in committing a criminal act for which a prison sentence of at least five years is prescribed. 7 According to article 104 of the Constitution and article 2 of the Act on the Judicial Council of the Republic of Macedonia, the Judicial Council is autonomous and independent judicial body with a primary function to ensure and guarantee the independence of the judicial branch. The Council, in accordance with international principles, is composed of 15 members, of which, 8 members are elected by the judges from their own ranks. Furthermore, the principle of equitable representation of citizens in terms of ethnicity is ensured, as well as representation of different judicial levels, i.e., levels of jurisdiction. 8 The selection and dismissal of judges, lay judges and presidents of courts is within the exclusive jurisdiction of the Judicial Council and is based on objective criteria stipulated by the Courts Act in articles 45 and 46. In addition to these competencies, the Judicial Council is responsible for determining the disciplinary liability of a judge and evaluation of the work of judges. The issues related to the Council of Public Prosecutors and the status of the Public Prosecutor Office are regulated in a simillar fashion, the only difference made is that the Public Prosecutor In 2014, the judiciary power in Macedonia was executed by 622 judges. Out of these, 23 judges are from the Supreme Court of the Republic of Macedonia, 30 from the Administrative Court, 10 from the Higher Administrative Court, 101 from the 4 Appellate Courts and 458 from the Basic Courts. In addition, the court administration counts 1973 employees. Article 100, Amendment XXVII, paragraph 1 of the Constitution of the Republic of Macedonia. One member is elected per each appellate area, and one from the Supreme Court of the Republic of Macedonia. 8

9 of the Republic of Macedonia is elected by the Parliament, on a proposal by the Government, and upon obtained opinion by the Judicial Council. The Courts Act regulates the internal independence of courts and judges in a way that within the structure of the judiciary is determined that the higher courts should not in any way affect the independence of the courts of lower instance in reaching verdicts on specific cases or adversely affect the independence and authonomy of the lower courts in making judicial decisions. Financial independence is guaranteed in the domestic legal order. Therefore, issues related to financing the judicial branch of power, as well as the drafting, adoption and enforcement of the Court budget is exercised by the Court Budget Council on the basis of the Court Budget Act. On the other hand, individual financial independence of judges is guaranteed by the Act on the Salaries of Judges. In this manner, the judiciary has the opportunity to directly participate in formulating decisions on their financial matters. Judges may establish associations in order to exercise their rights and further promote their interests, to advocate for professional development and to protect the independence and authonomy of the judicial function. The individual independence of judges is further strengtened by determining the functional immunity of judges in article 100 of the Constitution. Partial alignment is noted in the segment of disciplinary procedure and dismissal of judges, more specifically, in the procedure on appeal against a decision of the Judicial Council to impose disciplinary action and/or dismissal of a certain judge. Namely, it is disputable whether the institution which decides on the appeal the Council for deciding upon an appeals from the Judicial Council, established by the Supreme Court is independent and impartial in its functioning. 9 This is due to the fact that one of the competences of the Judicial Council is to elect judges for all courts in Macedonia including the Supreme Court. 10 In addition, dismissing judges based on disciplinary violations is perceived as problematic also from the standpoint of international standards and principles. The grounds for discrimination on which the decision on selection of judges must not be based are defined and elaborated in acts regulating the judiciary. Finally, the domestic legal order does not provide an opportunity to appeal the decision of the Judicial Council to elect a judge At the time when this publication went to press (December 2014), amendments have already been initiated to the Constitution and the Judicial Council Act of the Republic of Macedonia, in an effort, among other things, to address this issue. 10 Ibid. 11 Ibid. Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 9

10 2. Impartiality Standards on impartiality envisaged by the EU Magna Carta of Judges (paragraphs 18 22) Bangalore Principles of Judicial Conduct Recommendation CM/Rec (2010) 12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities (paragraphs 59 74) Recommendation Rec (2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system (paragraphs 24 36) European Guidelines on ethics and conduct for public prosecutors The Budapest Guidelines European Convention on Human Rights (articles 6 and 13) Body Consultative Council of European Judges, Council of Europe United Nations Human Rights Council Council of Europe Council of Europe Conference of Prosecutors Generals of Europe Council of Europe Article 9 of the Constitution guarantees the equality of citizens before the Constitution and laws, whereas the laws, especially the procedural ones, guarantee the right to a fair trial within a reasonable time, and access to the courts. The impartiality of judges is also guaranteed by the Constitution and is provided in the Courts Act (article 11), as a right to decide impartially by applying the law on the basis of free evaluation of the evidence. Furthermore, it is prohibited to exert influence in any form and by any entity on the independence, impartiality and autonomy of the judge in their exercise of the judicial office. This prohibition was also introduced in the Criminal Code by incriminating such influence on judges. This complements the functional immunity of judges layed down in the Constitution. Conflicts of interest among judges is regulated in two ways through rules for exemption and the rules of incompatibility of the judicial function with other functions. Procedural laws, such as the Civil Procedure Act and the Criminal Procedure Act stipulate clear criteria for exemption of judges on specific court proceedings, although they are not as broadly defined and envisage certain situations as in international documents. On the other hand, the Constitution (article 100) determines incompatibility of the judicial function with membership in a political party or another public function or profession, as stipulated by the Courts Act (article 52). The distribution of court cases between judges according to objective criteria, i.e. according to their admission into the court is regulated by the Courts Act, especially the Act on Case Flow Management in the Courts and the Court Rulebook. The Automated Information System for Court Case Management System (ACCMIS) is introduced in all courts, which provides court cases recordkeeping and management, as well as connecting the external documents with the appropriate court cases. Concerning the judge s ethical and behaviour standards, in 2014 the Association of Judges of the Republic of Macedonia has adopted a new Code of Judicial Ethics for Judges of the Republic of Macedonia. The Code is a collection of the most important principles in judicial ethics in which, issues of the judge s independence, impartiality, integrity, propriety, equality, competence and ethics, conflicts of interest, corruption and violation of the judge s principles 10

11 are elaborated. For their implementation and enforcement, an advisory opinion is given by the Advisory Council for judicial ethics. The Code fully incorporates the principles of judicial ethics elaborated in the Bangalore principles of judicial conduct. 3. Professionalism Standards on professionalism envisaged by the EU Magna Carta of Judges (paragraph 8) Basic Principles on the Independence of the Judiciary (paragraph 10) Recommendation CM/Rec (2010) 12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities (paragraphs 41, 56 58) Recommendation Rec (2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system (paragraph 7) Body Consultative Council of European Judges, Council of Europe United Nations Council of Europe Council of Europe The establishment of the Academy for Judges and Public Prosecutors in 2006 and the adoption of the Act on the Academy for Judges and Public Prosecutors in 2010 significantly raised the level of professionalism of the judiciary and the prosecution services in Macedonia. The Academy is considered as an independent, autonomous institution with a predetermined budget, its own premises, equipment and human resources, as well as a Steering committee composed of representatives from the main judicial institutions. It is responsible for initial and continuous training of judges and public prosecutors. Within the framework of the initial training, the Academy is responsible for the selection of candidates, based on examination for qualification, acceptance and final examinations, basing the whole process of selection of candidates for judges and public prosecutors on objective criteria set to raise the level of quality. Continued training is mandatory according to the Act on the Academy for Judges and Public Prosecutors for all judges, prosecutors, court presidents and prosecutors of the public prosecutions. Besides the training, the domestic legal order also envisages an evaluation of the work of judges, as an important element for maintaining the professionalism of the judiciary. The Judicial Council is responsible for assessing the performance of judges on regular basis based on qualitative and quantitative criteria stipulated in the Judicial Council Act. The assessment of the work of judges is an important factor for advancement in the judicial career. Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 11

12 4. Efficiency Standards on efficiency envisaged by the EU Body Recommendation No. R (86) 12 of the Committee of Ministers to member states concerning measures to prevent and reduce the excessive workload in the courts Council of Europe Recommendation CM/Rec (2010) 12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities (paragraphs 30 41) Council of Europe Efficiency is defined in accordance with the Recommendation of the Council of Europe on the independence, efficiency and accountability, as reaching a decision in a reasonable time and fair procedure. Individual judges are obliged to ensure efficient management of court cases for which they are personally responsible, including the execution of verdicts in cases when the execution is part of their competence. Improving the efficiency in Macedonia is made possible by enactment of certain legislation that envisages the possibility of alternative dispute resolution in the form of mediation. In this segment, national legislation has achieved full alignment, primarily of the Civil Procedure Act and the Mediation Act, with relevant international documents where there is a clear obligation for judges to encourage alternative dispute resolution. In addition, the introduction of the notaries and expanding their competencies allowed a certain reduction of the number of court cases which do not have strictly judicial character. The establishment of the obligation in domestic legislation to introduce information and communication technologies in the administration and management of court cases and the judiciary in general, gave a new impetus in the improvement of the efficiency of the judiciary. With the amendments to the Court Rulebook of 2009, as of January 1, 2010 all courts in Macedonia have to introduced the Automated Information System for Court Case Management System (ACCMIS), which electronically records all court activities, however, the cases are also kept in paper version, in addition to the electronic version of the ACCMIS system. Electronic delivery and audio recording of the court proceedings, stipluated with the procedural laws (Civil and Criminal Procedure Acts) and the new Court Rulebook, are partially included in the courts, primarily, because of the necessary human, technical and organizational conditions needed for their proper functioning. 12 In addition to these mechanisms, the Courts Act provides a specific jurisdiction of the Supreme Court of the Republic of Macedonia to protect the right to trial within a reasonable time, which, also allows to further increase the efficiency of the courts. For this purpose, a special department was set up at the Supreme Court to protect the right to trial within a reasonable time. What is lacking in the national legal system is a provision which requires a regular review of the organization of the judiciary, i.e. of the local and actual jurisdiction of the various courts 12 Measures have been taken for achieving full technical capacity, thus, making the system fully operational. 12

13 on the basis of their workload in order to ensure even workload distribution between courts on national level, and not just at the level of individual courts. 13 The judge may require transfer from one to another department. According to the Courts Act, a judge cannot be transferred from one to another court department against his/her will, with the only exception being, in cases of a decision decision of the president of the court, upon previously obtained opinion from the general session of the Supreme Court of the Republic of Macedonia, when it is required by the increased workload and the subject of work of the court, but for a period of one year at the most. The judge may file a complaint against the decisions. In case of abolishment or reorganization of a court, the Judicial Council shall transfer the judge of such court to another court in the same or lower instance. 13 At the time when this publication went to press (December 2014), amendments have already been initiated to the Constitution and a number of acts related to the judiciary, in an effort, among other things, to address this issue. Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 13

14 Iv. overview of ThE DEgREE of ALIgnMEnT of ThE national LEgAL framework 1. Magna Carta of Judges (fundamental principles) Standard envisaged by the EU Magna Carta of judges (Fundamental principles); Consultative Council of European Judges, Council of Europe, 17 November 2010 CCJE (2010)3. national legal framework Constitution of the Republic of Macedonia ( Official Gazette of the Republic of Macedonia No. 52/1991, 1/1992, 3/1998, 91/2001, 84/2003, 107/2005, 3/2009 and 49/2011); Courts Act ( Official Gazette of the Republic of Macedonia No. 58/2006, 62/2006, 35/2008 and 150/2010); Public Prosecution Office Act ( Official Gazette of the Republic of Macedonia No. 150/2007 and 111/2008); Act on the Judicial Council of the Republic of Macedonia ( Official Gazette of the Republic of Macedonia No. 60/2006, 150/2010 and 100/2011); Act on the Council of Public Prosecutors of the Republic of Macedonia ( Official Gazette of the Republic of Macedonia No. 150/2007 and 100/2011); Act on the Salaries of the Members of the Council of Public Prosecutors of the Republic of Macedonia ( Official Gazette of the Republic of Macedonia No. 139/2009, 67/2010 and 97/2010); Court Budget Act ( Official Gazette of the Republic of Macedonia No. 60/2003, 37/2006; 103/2008 and 145/2010); Act on the Salaries of Judges ( Official Gazette of the Republic of Macedonia No. 110/2007, 103/2008, 161/2008, 153/2009, 67/2010, 97/2010 and 135/2011); Act on the Salaries of Public Prosecutors ( Official Gazette of the Republic of Macedonia No. 153/2009, 67/2010 and 97/2010); Act on the Academy for Judges and Public Prosecutors ( Official Gazette of the Republic of Macedonia No. 88/2010, 166/2012 and 26/2013); Act on Case Flow Management in the Courts ( Official Gazette of the Republic of Macedonia No. 171/2010); Civil Procedure Act ( Official Gazette of the Republic of Macedonia No. 7/2011 consolidated text); Criminal Procedure Act ( Official Gazette of the Republic of Macedonia No. 150/2010 and 100/2012); Administrative Disputes Act ( Official Gazette of the Republic of Macedonia No. 62/2006 and 150/2010); Pension and Disability Insurance Act ( Official Gazette of the Republic of Macedonia No. 98/2012, 166/2012, 15/2013, 170/2013, 43/2014, 44/2014, 97/2014, 113/2014 and 160/2014); Enforcement Act ( Official Gazette of the Republic of Macedonia No. 35/2005, 59/2011 consolidated text, 148/2011 and 187/2013); Act on Execution of Sanctions ( Official Gazette of the Republic of Macedonia No. 2/2006, 57/2010, 170/2013, 43/2014 and 166/2014); Court Rulebook ( Official Gazette of the Republic of Macedonia No. 66/2013 and 114/2014); Code of Judicial Ethics for Judges of the Republic of Macedonia, The Magna Carta of Judges (Fundamental principles) adopted by the Consultative Council of European Judges within the Council of Europe codifies the basic principles underpinning the judiciary of a European country. The document includes twenty-three provisions relating to seven areas: the rule of law and justice, independence of the judiciary, guarantees of independence, institution responsible for guaranteeing the independence, access to justice and transparency, ethics and accountability, and international courts. 14

15 The Rule of Law and Justice Full alignment in this segment is ensured with the constitutional provisions as well as by ensuring the separation of powers under which the judiciary is one of the three branches of power. The provisions of the Courts Act clearly define the objectives of the judiciary which correspond to those provided in the Magna Carta. Judicial Independence Domestic legal acts which relate to judicial independence and impartiality of judges are virtually fully aligned with the principles of the Magna Carta. Judicial independence, first and foremost, is guaranteed by the highest national legal act, i.e., the Constitution of Macedonia. The constitutional and law provisions (the Courts Act, the Act on the Judicial Council of the Republic of Macedonia, the Act on the Academy for Judges and Public Prosecutors and the Code of Judicial Ethics for Judges) to a great extent ensure the statutory, as well as functional and financial independence, thus making the judiciary separated from the other branches of power. In addition, the state and its institutions, including the Judicial Council, as well as individual judge are obliged to protect and promote judicial independence. The reforms in the past several years have: provided a higher degree of objectiveness in the selection process for judges, secured and safeguarded the tenure of judges, introduced the judicial career, initial and continuous training, refined judicial immunity, reformed the salaries of the judges and changed the financing of the judiciary. Partial alignment, which will be additionally elaborated in the context of the other principles, is noted in the segment of disciplinary measures and procedure for judges, dismissal of judges, as well as their continued evaluation. Guarantees of independence In regard to the guarantees of independence there is full alignment in terms of most of the principles. Thus, the procedures for selection and promotion of judges, especially those amendments to the Courts Act which entered into force in 2013, are based on objective criteria and are implemented by the Judicial Council as an independent body which also guarantees the independence of the judiciary. The financial independence of the judiciary has been strengthened with the amendments to the Court Budget Act from The amended act mandates the provision of a certain minumum, as percentage of the gross domestic product per year, to the judicial branch. Furthermore, in terms of the individual financial independence of judges, it is regulated and guaranteed by the specific Act on the Salaries of Judges and the Pension and Disability Insurance Act. Since its establishment, the Academy for Judges and Public Prosecutors carries out initial and continuous training for judges and prosecutors, in order to further promote the independence, as well as the quality and efficiency of the judiciary. The judiciary is fuly involved through the Judicial Council, the Court Budget Council, and the Association of Judges in reaching important decisions which affect it, such as the structure of the judicial system, court proceedings and other acts regulating similar issues. In this sense, the level of involvement could always be improved. The provisions of the Courts Act safeguard the impartiality of judges, and stipulate that judges are independent n their decision-making, whereas it is prohibited to exert any influence on them. Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 15

16 However, partial alignment is observed in the part of the disciplinary procedures, particularly in the segment of the procedure for determining the disciplinary responsibility of judges, and related sanctions. There are certain shortcomings in the process and in the competent bodies, as well as in the possibility of a serious disciplinary offense which might lead towards dismissal of judges, all of which can adversely affect the independence of an individual judge. 14 As an important aspect of the independence and impartiality of the judiciary, especially with the new criminal procedure and the extensive reforms in this area, a high degree of equality in the procedural rights and obligations of the prosecutor and the defense in criminal procedures has been ensured. Furthermore, the reform of the judicial system started in 2005 with the constitutional and legal provisions, the independence of the prosecution service is ensured. Finally, the judges have the opportunity and the right to establish and become members of national associations of judges in order to protect and promote their rights and interests, the independence and autonomy of the judicial function. Lastly, compared to the recommendations from the Magna Carta, there is no provision in the national legal acts which regulates the participation of judges in international organizations of judges. Institution in charge of guaranteeing independence The constitutional and law provisions fully meets the standard related to the independence of the judiciary, so that the institution is fully responsible for guaranteeing of the independence of the judiciary and the individual independence of the judges, and the Judicial Council, is separated from the legislative branch and the executive. The majority of members of the Judicial Council are from the judiciary and elected through direct elections by the judges themselves. Access to justice and transparency Standards and principles related to access to justice and transparency are to a great extent fully harmonized, however, there are certain aspects which are not completely alligned. The constitutional and law provisions in Macedonia guarantee the principle of transparency as one of the basic principles which underpins the functioning of the judiciary. The respective procedural laws for civil and criminal procedure, also determines the principle of transparency as particularly significant, and is the presence of the public during the court proceedings is precisely regulated, as well as the announcement of the verdicts. It should be emphasized that the legal provisions also regulate the obligation to publish verdicts through a separate database, which still needs to be improved to deliver best results. In addition, the courts are obliged to establish an public relations office, so as to bring their work closer to the citizens. The Judicial Council is obliged to hold a public session at least once a month to discuss the complaints filed by citizens and legal entities on the work of the judges and the courts, as well as to examine longstanding court proceedings and reach a decission on each complaint and appeal. However, it is necessary to further enhance the transparency of the Judicial Council, since there is no specific provision that mandates the creation of a public relations 14 At the time when this publication went to press (December 2014), a number of legislative changes have already been initiated which addressed the issue of proportionality of criminal sanctions and the procedure for determining the disciplinary responsibility. 16

17 office within the Judicial Council, although the institution has already designated a public relations officer. The constitutional and law provisions ensure a good basis for access to fast, efficient and affordable resolution of litigation. There is an obligation for the judges to promote methods of alternative dispute resolution (for example, mediation) and numerous provisions which allow a clear application of these methods. Regarding court documents and decisions, there is considerable alignment related to their formulation using a clear and understandable language, explanations of the decisions reached and their publication within reasonable time. In terms of the accessibility and simplicity of the language used in the judicial decisions, it can be noted that the legal provisions apply only to the disposition of the verdicts, whereas the same provisions do not apply in respect to the explanation of court verdicts. This partial harmonization of the legal provisions is compensated with the provisions of the Court Rulebook. On the other hand, the legal framework regarding the managing of court cases within the courts is harmonized to a great extent. Alignment is also observed in relation to the enforcement of court decisions, especially through extra-judicial execution by enforcement agents. Ethics and responsibility In 2014 the Association of Judges of the Republic of Macedonia has passed a new Code of Judicial Ethics for Judges which is based on and is aligned with international documents. The constitutional and law provisions define disciplinary responsibility of judges and the procedure by which it should be determined. Judicial immunity is regulated by the Constitution and the Courts Act, and it protects judges from criminal responsibility for any voiced opinion and decision-making in reaching judicial decisions, but not from criminal liablity which is not related to their judicial function. The judge has immunity and cannot be detained without the approval of the Judicial Council. In this manner, the judges are only partially exempt from criminal liablity in performing their judicial function. On the other hand, the provisions of the Courts Act clearly determine that the judge would not be made accountable for errors in the proceedings, unless it is a violation for which the judge is dismissed. In such instance, the state may launch a litigation seeking damages in the amount which the state has paid out to citizens or legal entities for the irregularities. The reasons due to which a judge can be dismissed are broadly defined, in order to distinguish between intentional or unintentional error or damage as required by the Magna Carta. Due to this, there is partial alignment in relation to this issue. Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 17

18 2. Basic Principles on the Independence of the judiciary Standard envisaged by the EU Basic Principles on the Independence of the Judiciary; United Nations; 29 November national legal framework Constitution of the Republic of Macedonia ( Official Gazette of the Republic of Macedonia No. 52/1991, 1/1992, 3/1998, 91/2001, 84/2003, 107/2005, 3/2009 and 49/2011); Courts Act ( Official Gazette of the Republic of Macedonia No. 58/2006, 62/2006, 35/2008 and 150/2010); Act on the Judicial Council of the Republic of Macedonia ( Official Gazette of the Republic of Macedonia No. 60/2006, 150/2010 and 100/2011); Court Budget Act ( Official Gazette of the Republic of Macedonia No. 60/2003, 103/2008 and 145/2010); Act on the Academy for Judges and Public Prosecutors ( Official Gazette of the Republic of Macedonia No. 88/2010, 166/2012 and 26/2013); Act on the Salaries of Judges ( Official Gazette of the Republic of Macedonia No. 110/2007, 103/2008, 161/2008, 153/2009, 67/2010, 97/2010 and 135/2011); Criminal Code ( Official Gazette of the Republic of Macedonia No. 37/1996, 80/1999, 4/2002, 43/2003, 19/2004, 81/2005, 60/2006, 73/2006, 7/2008, 139/2008, 114/2009, 51/2011, 135/2011, 185/2011, 142/2012, 166/2012, 55/2013, 82/2013, 14/2014, 27/2014, 28/2014, 115/2014, 132/2014 and 160/2014); Criminal Procedure Act ( Official Gazette of the Republic of Macedonia No. 150/2010 and 100/2012); Civil Procedure Act ( Official Gazette of the Republic of Macedonia No. 7/2011 consolidated text); Act on Case Flow Management in the Courts ( Official Gazette of the Republic of Macedonia No. 171/2010); Misdemeanours Act ( Official Gazette of the Republic of Macedonia No. 62/2006 and 51/2011); Administrative Disputes Act ( Official Gazette of the Republic of Macedonia No. 62/2006 and 150/2010); Code of Judicial Ethics for Judges of the Republic of Macedonia, 2014; Court Rulebook ( Official Gazette of the Republic of Macedonia 66/2013 and 114/2014). With the aim of ensuring and promoting independence of the judiciary, the United Nations have adopted the Basic Principles on the Independence of the Judiciary. This document envisages the essential principles applicable in this area, through 20 provisions divided into six sections, as follows: independence of the judiciary, freedom of expression and association, qualifications, selection and training, conditions of service and tenure, professional secrecy and immunity, and discipline, suspension and dismissal. The constitutional and legal framework in Macedonia is fully harmonized with this document. Independence of the Judiciary With the constitutional provisions relating to the judiciary and the relevant legal provisions, primarily, deriving from the Courts Act and the Act on the Judicial Council and procedural laws, Macedonia is fully aligned with the basic principles for judicial independence. In addition, the Code of Judicial Ethics for Judges has incorporated part of the basic principles in its provisions. The independence of the judiciary is guaranteed with the highest legal act, the Constitution, as well as with specific legislation, and additionally, impartiality is ensured in the functioning and decision making of the judges without any restrictions, improper influences, inducements, pressures, threats or interferences. Furthermore, in terms of court jurisdiction, 18

19 the domestic legal provisions correspond fully with the obligation for jurisdiction of courts in matters of judicial nature and the exclusive right of the judiciary to independently determine whether an issue is part of its jurisdiction. Also, these provisions provide the right to appeal court decissions and the conditions under which the decision may be altered or revoked. Full alignment has been achieved in relation to the equal access to the courts and judicial procedure, in front of ordinary courts, and not in front of special or extraordinary courts which do not apply regular procedures regulated by national legislation. The provisions of the Courts Act and procedural laws ensure full alignment with the principle of fair trial and respect for the rights of the parties in the procedure. As a necessary component of the judicial independence, financial independence is fully ensured with the provisions of the Courts Act and the Court Budget Act. Freedom of expression and association The Constitution and the relevant provisions of the Courts Act and the Code for Judicial Ethics of Judges, judges are guaranteed the freedom of expression, belief, association and assembly, freedoms which are exercised and practiced in accordance with the dignity of the judicial function, independence and autonomy of the judiciary. Furthermore, the right of the judges to establish associations and organizations which would represent their interests and protect the independence of the judiciary is also guaranteed. In this manner, full alignment with the principles of the United Nations is achieved. Qualifications, selection and training Full alignment with this principle is achieved through the constitutional and law provisions which determine objective criteria for the selection of judges, whereas it is guaranteed that the selection would not be conducted on discriminatory grounds. Conditions of service and tenure In Macedonia, the tenure of judges, their independence, security, adequate remuneration, conditions of service, pension and the age of retirement, are governed by respective constitutional and legislative provisions. The tenure of judges is guaranteed untill the fulfillment of the conditions for retirement. Promotion in the judicial career is based on objective criteria, primarily, on personal integrity and experience, which are regulated by specific conditions for the selection of judges in the Courts Act which has been a subject of multiple improvements. The Courts Act, the law on the management of case flow in courts and the Court Rulebook defines the manners in which the court cases are assigned to judges, primarily, by the time of receipt of the case, and without prejudice from the President of the court, the judge or court administration. As a result of this, the domestic legal framework is fully harmonized with these principles. Professional secrecy and immunity Partial harmonization of national legislation has been achieved with this specific UN principle. Namely, national legislation regulates the obligation to keep official or professional secrecy Independence, ImpartIalIty, professionalism and efficiency of the JudIcIal system 19

20 with regard to information acquired in the course of proceedings in more restrictive manner. However, this is only limited to classified information. In the same vein, the relevant legislation lacks a clear obligation, or right of the judge not be forced to testify for information and findings acquired during the court procedure. Also, in terms of the second principle of this section, partial alignment of national legislation has been observed, since the conditions under which the judge compensates the damage which occurred as a result on their unlawful conduct, determined with a court decision in accordance with the law, and compensated to claimants initially by the state, is stipulated too widely compared to the principle. Namely, according to Article 70 of the Courts Act the Republic of Macedonia is liable for damages when a judge or lay judge caused harm to citizens or legal entities by unlawful exercise of their office. When the judge is dismissed due to the inflicted harm, the Republic of Macedonia will file a lawsuit demanding compensation from the judge for the paid damages, in an amount determined by the court in accordance with law. Based on this article of the Courts Act, the state may claim such compensation from the judge in relation to any of the reasons for dismissal from office. Discipline, suspension and removal In regards to the principles relating to the disciplinary procedure, the national legal order is fully aligned. The procedure regulated by the Act on the Judicial Council of the Republic of Macedonia enables the judge who is subject of a disciplinary procedure to express ther opinion on the allegations against them, as well as to file a complaint against the decision. The Constitution, the Courts Act and the Act on the Judicial Council determine the grounds for suspension and dismissal of judges, whereas it is stipulated that a judge can be dismissed from judicial function due to serious disciplinary that makes him/her unfit to exercise the its function. Hence, on this rather general level, Macedonia has achieved full alignment. The right to appeal in a disciplinary procedure and procedure for dismissal of judges is provided by article 96 of the Act on the Judicial Council in a manner that the judge can appeal to the decision of the Council, to the Council for decisions on appeals of the Judicial Council against the dismissal orders or instituted disciplinary measures established by the Supreme Court of the Republic of Macedonia. Partial alignment is observed as it is questionnable the extent of independence of this institution taking in consideration it competence to select judges on all court in Macedonia including the Supreme Court At the time when this publication was sent to press (December 2014), amendments have already been initiated to the Constitution and the Act on the Judicial Council of the Republic of Macedonia, in an effort, among other things, to address this issue. 20